Friday, April 17, 2015

Campbell conference: ethical and strategic issues in fair use litigation

Naeve: discuss ethics of parody, disparagement, use in
pornographic work. Should you ask permission?

Lydia Loren, Lewis & Clark: for all its positive
effects, she dislike Campbell’s
characterization of fair use as an affirmative defense.A defense is any reason D might prevail: work
is in public domain; P isn’t the owner; I didn’t copy.These may be pled as defenses, but an
affirmative defense is a “yes but.” I infringed, but it’s ok. That really
solidified in Campbell: only address
fair use after the prima facie case has been met, putting burden on D.But why?

D counsel conceded it was an affirmative defense at oral argument
in Campbell.Campbell
cites Harper & Row, which calls
it a defense many times but an affirmative defense only once. We teach it as
affirmative defense, but it falls apart as such.The statutory language does not support the
characterization: §107 says fair use is “not an infringement.” §106 says the
rights are subject to §§107-110; §501 says violations in the statute as
provided §§106-122. Legislative history (cited by Harper & Row) speaks of fair use as part and parcel of the
definition of the copyright owner’s right. And indeed the genesis of the
doctrine is in Justice Story’s determination of whether there was infringement,
not a separate fair use inquiry.

Courts should therefore stop putting lack of evidence as a
reason why sj shouldn’t be granted. Instead it’s part of the scope of copyright
owner’s rights.

Dave Fagundes and I have started to look at why people
object to copying.Moral foundations: Harm
rationales; unfairness/lack of reciprocity; purity; loyalty; authority.Authors who object to “murdering their babies”:
authority rationale; Scientologists; Christian sculptor upset by appearance of
his sculpture in The Devil’s Advocate
in a pagan/heathen context.Can we learn
by systematizing these reasons?

How well does fair use respond to diverse and heterogeneous
moral concerns authors and owners have about use of their work? Which factors
do the work of excluding noneconomic objections?Is fair use doing a better job of
constraining certain kinds of nonmarket objections than others?Gotten pretty good at dealing with objections
that are really just about control, like Scientology. Not as good with objections
dealing w/ purity or fairness.

To what extent should fair use become even more
psychologically realist? Fair use is a story of market harm, but creation has
less to do with markets than copyright claims. If we start recognizing true
creative motivations, do we need to recognize certain moral objections if they
turn out to affect creative production?

Duncan Macfarlane, Macfarlane Law: Sync licenses versus
cover rights.Sync licenses are in
practice moral rights: artists have turned down sync licenses simply because
they didn’t want their music used in a particular way. Sync licenses are also
often exclusive, so an artist must pick which project to go with.Freeplay v. Maker litigation: using AV works
without sync licenses.

Must copyright owner consider fair use before sending a takedown?Lenz v.
Universal: so obviously fair use that Universal shouldn’t have issued a
takedown?He doesn’t think so.In his mind, she’s using the music as
originally intended; her children are interacting w/ the music.Not incidental and background, and anyway
incidental and background doesn’t make it fair use.Third factor doesn’t weigh one way or another
(in 29 second film).Regarding market
effect: SCt said it wasn’t the single use, but whether unrestricted and
widespread similar uses would negatively impact the market. YouTube has
dramatically impacted the market; some of his client left the creative
industries because they feel their work is too easily used.He understands that YouTube is here to stay
and fair use is here to stay.

Paul Heald, Illinois (w/Buccafusco): Study on parody,
testing theories of tarnishment.Test
theory: in copyright, the existence of Madeline
Does Dallas might lead to awkward questions during bedtime stories: used to
justify term extension as well as the result in Air Pirates: strong sexual connections w/ a work harm it.Testimony: we can’t have Mickey Mouse porn or
Superman porn.(Oh, do I have some
news for those people.Also, see the
IMDB entry for this movie.)TM: similar claims—brand associated with
incompatible values or unpleasant images = less likely to buy.Photos of the allegedly tarnishing uses
themselves are “potent witnesses” even w/out other evidence of harm.

Summary of consumer psych research on sex in ads: sex
generally increases brand recall; may
have negative effect on brand perception
depending on context; marginally positively influences purchasing decisions.Baseline survey: late-night movies, eliciting opinions on pairs of
movies, e.g., You’ve Got Mail/Sleepless
in Seattle.Then try to tarnish one
movie and see whether you get different results.(If you pair w/some other film before asking
about the two, it doesn’t affect results so it’s not a reminder effect.)

Then tested You’ve Got
She-Male and Bi-Tanic, then ten
pairs later You’ve Got Mail and Sleepless in Seattle.The claim is that mere knowledge of the
tarnishing use is enough to lessen the value of the underlying mark.We also asked would you like a T-shirt from
movie A or B. Haven’t found a whole lot. Significant negative difference in
whether they want a T-shirt with one movie, but exposure to tarnishing movie
doesn’t move consumer preference between movies.

Problem is not w/decided cases and we should stop saying
that it is. Please.There are a few
outliers, but as compared to any other doctrine, courts get it right. Real
problem is at the C&D stage. Old cases have incredibly long legs, asserted
in letters even now—Enjoy Cocaine, Balducci,
Mutant of Omaha—8th
Circuit is especially to blame. But even the 8th Circuit seems to be
moving.C&D are effective in part
b/c of these older cases, but also trades on a narrative that McGeveran wants
to help us avoid: lawyers too often repeat that there’s uncertainty about what
will happen, making people reluctant to fight back. Courts get the right
results, but often through unpredictable doctrinal categories/doctrines that
require fact development and thus aren’t used early in the case.

Thus, we should focus on reforming procedural dimensions to
fast-track certain dismissals. Embrace of Rogers
is helping, since artistic relevance and explicit misleadingness can often be
answered early in the case. Give confidence to people to tell TM owner to pound
sand.

Mark Wittow, K & L Gates: What happens to people who can’t
hire a lawyer but approach free legal clinics, like Washington Lawyers for the
Arts and ArtistsTrust, Wayfind.Sony v.
Faulkner estate—people can sue for anything, even a single sentence, even
though he’d previously have thought no one in their right mind would’ve sued
over that. You always have to advise in the context of risk. After Campbell:
There’s no benefit/detriment to asking permission/skipping a request.If what you’re doing is likely to stay under
the radar/not make much money, don’t ask permission.

What about the non-brought cases such as Girl Talk?Nobody’s willing to take him on for fear of
making bad law; also he doesn’t make any money from his samples.

Loren: you need to plead a plausible claim of
similarity.If you stay pristine, can’t
be 12(b)(6), which happens in the Brownmark case where the court of appeals
says, do it on the pleadings under 12(c).Has seen Iqbal interpreted to
dismiss a fair use affirmative defense because there weren’t enough facts pled
to make fair use plausible: ugh.How do
you prove lack of harm?Innovative
approaches, like HathiTrust, where
they asked the Ps in interrogatories: state any harm.Court points to the answer—we don’t have any—as
evidence of no harm. If burden were on plaintiffs, we’d have to have a full
harm debate.

Preliminary injunction stage: shifts the burden to Ps. We
see that in Perfect 10 v. Amazon: court excised a portion of the opinion saying
that likely success inquiry should consider likelihood of overcoming fair use
defense.So this concept does have
impact, especially in procedural aspects of the case.

Naeve: after Lenz and Brownmark, is there an affirmative
obligation to do a fair use analysis?

Macfarlane: Lenz
is undecided; the argument is that the burden should be on the copyright
owner.Google receives 10 million+
takedown notices/month.Fair use would
be a sword rather than a shield.Unworkable.
(NB: attorneys’ fees eligibility already
makes fair use a sword in some circumstances.)DMCA contemplated that counternotification would be used to get a work
back up promptly. Proven to work. (RT:
actually, counternotification requires the work to stay down for a number of
days.)

Naeve: with Tiffany v. eBay, burden is on the TM owner.Sometimes, is fair use so obvious that there
should be an obligation?

Wittow: technical management problem. Sampling tech detects
things automatically. Not really possibility of fair use analysis. But once
there’s a fair use response, the action needs to shift and the veracity of
initial notice is beside the point; there should be real proof it’s not fair
use.

McKenna: not even a strong distinction in Campbell; parody was just a paradigmatic
example of transformativeness.Maps well
onto some uses and not others.Transformative use means more than parody, and that’s a good thing as
the dilution of this always unstable parody/satire distinction became more
apparent.

Heald: Court was thinking about an old case in which Jack
Benny skit was held liable for taking too much.

Buccafusco: some of our porn versions explicitly say “parody”
or “a porn parody” on them and we don’t see any differences in results; some
appear to poke fun at the original and others don’t, and again there doesn’t
seem to be a difference.Maybe viewing
would make a difference, but the harm claim doesn’t depend on people viewing,
just knowing about the parodic version.

Is/ought distinction: law need not adopt moral outrage.Can stay committed to a brand of
consequentialism that promotes creativity and preserves opportunities for
sequential innovation.First Amendment
externalities.

Naeve: how do you counsel v. defamation?

Wittow: people have brought me defamation problems, mixed in
w/copyright issues. Defamation is so much easier b/c the rules are pretty
straightforward; it’s not that you can’t get a bad verdict, especially outside
the US, but it’s easier—comparison highlights how much harder it is to advise
someone on fair use.Fact is a defense,
opinion is a defense, and public figure changes the standard entirely.It will be the unusual parody that isn’t
opinion and isn’t about a public figure. Most people worry about defamation for
no reason.

Buccafusco: speculates that for a lot of people,
unauthorized uses that we think of as parodies feel like defamation to the
authors—not opportunities for cultural exchange but individually felt harms—emotional,
or other kinds of moral interests.

Heald: argues that we have moral rights functionally in US
law, at least for music; fair use may be used to fight against that.

Said: falsity is a requirement for defamation.When defamation is pled in such a way to
object to something that isn’t squarely provable as false, it’s operating the
same way as moral rights in copyright. (See why I’ve written that this makes dilution
unconstitutional.)But there’s a
strong privilege protecting against abuse of right: fair use, and burden of
showing falsity/actual malice for public figure.

Naeve: we do overlap with defamation, rights of publicity,
TM.You might have one creative work
that intersects w/all these areas.

Hughes: What about the existing fame of You’ve Got Mail—what
if it’s so powerful that the effect of You’ve Got She-Male doesn’t come
through?

Heald: in the next iteration we will be doing recall—ten titles
you remember from the survey.They won’t
have any images in front of them.

Buccafusco: some of them have variation in the sample—but so
far there don’t seem to be differences across comedies, children’s films, etc.

McKenna: the Q is whether there’s any effect on demand.We seem to be mashing up a dilution effect on
demand for the work v. demand for the mark.There is some work on marks alone, which finds pretty much the same
thing.

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